Posted on August 7, 2022 by Lindsay Taylor 2

When is it unfair for an employee to be dismissed for breaching a COVID-19 vaccination policy?

The Industrial Relations Commission has recently reviewed a local council’s decision to dismiss an employee for breaching Council’s policy of mandatory COVID-19 vaccination.

In Blackwood v Northern Beaches Council [2022] NSWIRComm 1052, Mr Blackwood filed an application against Council for terminating his employment as a Commercial Centres Team Leader. The application was made on the basis that dismissal for breaching Council’s COVID-19 vaccination requirements was harsh, unreasonable or unjust. He sought to have his position reinstated.

The presiding officer, Commissioner Sloan, found that the only appropriate order in the circumstances was to dismiss Mr Blackwood’s application.

The Facts

Mr Blackwood was employed by Council from 5 March 2007 until 4 March 2022. As a Commercial Centres Team Leader, Mr Blackwood was required to manage and participate in maintenance programs in Council’s commercial centres, including the supervision and training of staff.

In August 2020, and periodically thereafter, Council conducted an organisation-wide ‘COVIDSafe Risk Assessment’ to identify and assess COVID-19 pandemic-related hazards and risks in the workplace, and suitable means to control them. The risk assessments were made available internally via Council’s intranet.

From mid-2021, when COVID-19 vaccinations became available, Council’s Chief Executive Team considered introducing a vaccination policy. Council then took steps to involve staff in the design of such a policy, including holding staff forums, consulting with workers and union representatives for six weeks, and preparing a feedback document (including Council’s responses to staff questions) which was then circulated to all staff.

Council’s vaccination policy and procedure were then approved in November 2021, which required staff to be fully (double) vaccinated from 4 January 2022 or not be permitted to attend to the workplace. Disclosures of vaccination status by staff were to be made to a dedicated, restricted access email address Council set up for this purpose. If a staff member failed to disclose their vaccination status, Council deemed them to be unvaccinated.

Councils CEO sent a letter to all employees who had not disclosed their vaccination status on 23 December 2021, including Mr Blackwood. The letter invited the staff to disclose their vaccination status by 4 January 2022. It advised that the staff would be placed on unpaid leave if not able to work temporarily from home. Mr Blackwood did not disclose his status.

Several attempts were made by Council staff to consult and engage with him in relation to Council’s vaccination procedure and for a further risk assessment in relation to Mr Blackwood’s role. Mr Blackwood did not respond and failed to participate in the process. Council undertook a risk assessment and found that Mr Blackwood’s role involved COVID-19 related risks to health and safety which could not be effectively mitigated by controls other than vaccination.

Mr Blackwood was advised by phone on 21 February 2022, and in writing on 23 February 2022, to show cause why his employment should not be terminated. Mr Blackwood’s response on 24 February confirmed that he did not intend to become vaccinated. He did not refer to any medical contraindications.

Council terminated Mr Blackwood’s employment on 3 March 2022.

Issue

The issue for consideration was whether the Mr Blackwood’s dismissal was ‘harsh‘, ‘unreasonable‘, or ‘unjust‘: see Industrial Relations Act 1996 ss 84, 88. The onus of proving so was on Mr Blackwood.

Findings

Commissioner Sloan found that Council’s decision was not harsh, unjust, or unreasonable.

The dismissal was not harsh because there was no evidence that Mr Blackwood ‘suffered any particular detriment as a result of his dismissal, beyond that which is suffered by any employee whose employment is terminated by their employer‘: at [62].

The dismissal was not unjust, given Council’s policy was lawful and reasonable and the way Council applied its policy to Mr Blackwood’s particular circumstances: at [60].

The dismissal was not unreasonable. The Commissioner said (at [61]):

‘Mr Blackwood was aware of the requirements of the Policy. He could have, but did not, provide evidence that his medical condition precluded him being vaccinated. He had an opportunity to participate in the risk assessment conducted in respect of his role, but he did not do so. He had an opportunity to show cause as to why his employment should not be terminated. As the Council submitted, Mr Blackwood did not raise at that time the arguments he has presented to the Commission. Everything he now puts he could have put then. He did not engage when he was given the opportunity.’

In making these findings, the Commissioner dealt with a number of discrete issues raised by Mr Blackwood. This included the following:

1. Reasonableness of Council’s policy. Mr Blackwood said Council’s policy was unreasonable because he was under few COVID-19 pandemic-related government restrictions, and that he should not be pressured to take an ‘experimental‘ vaccine. The Commissioner rejected this, saying the policy’s purpose was to protect employee and public health and safety: at [21]. In any case, Mr Blackwood had not engaged with the findings of Council’s risk assessment in detail or offered any evidence to support his contention that COVID-19 vaccines are experimental: at [16], [19].
2. Medical condition. Mr Blackwood said that his doctor was concerned about him being immunised because of heart medications he was taking. The Commissioner rejected this, saying he had not provided any medical evidence to the Commission or Council: at [24]. Even if he had, Mr Blackwood breached Council’s policy to produce that medical evidence if that was his reason for not being vaccinated: at [25].
3. Non-participation in the risk assessment process. Mr Blackwood said, among other things, that he had not been involved in Council’s risk assessment undertaken in respect of his position and in fact had never seen it. The Commissioner found that Mr Blackwood refused to participate in the process and could not now argue a denial of procedural fairness: at [34].
4. Provision of alternative duties or arrangements. Mr Blackwood argued that Council should have provided a bespoke role to him so as to render his vaccination unnecessary, given his long service with Council. Council conceded that a number of Mr Blackwood’s key responsibilities could be performed in isolation, but those did not comprise the majority of job description. The Commissioner rejected these submissions, saying Council had no responsibility to craft a bespoke role for Mr Blackwood: at [45]. He also noted that two unvaccinated employees of Council who did engage in the risk assessment processes, unlike Mr Blackwood, retained their employment: at [46].

This case is distinct from other COVID-19 vaccine mandate cases like CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, where in that case (which was in the federal jurisdiction) the Full Bench of the Fair Work Commissioner said that company’s vaccine mandate was unreasonable because the company failed to satisfy its consultation obligations under the Work Health and Safety Act 2011.

This case therefore illustrates the importance in industrial relations of consulting employees about COVID-19 mandatory vaccination policies and procedures. Had  Council in this matter not consulted so extensively with its employees, Mr Blackwood may have succeeded the application.

The full text of the decision can be found here.

If you have any questions about this blog post, please contact Dr Lindsay Taylor on (02) 8235 9701, Jennifer Chenhall on (02) 8235 9712 or Lachlan Penninkilampi on (02) 8235 9719.